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Judgment
Syed Bashir-Ud-Din, J.—Appellant on selection followed by his appointment joined the Subordinate Judicial Services as Munsiff on
25.4.2000, His selection and appointment is in RBA category against one of the category Munsiff posts, on the strength of the RBA certificate qua
his residence in village Rukhshilvat Tehsil Sonawari, District Baramulla, issued by Tehsildar Sonawari on 3.12.1996. One Javed Ahmad who also
happens to be a Judicial Officer has challenged selection/appointment of the Appellant against the Reserve Category post in SWP 1755/2000 with
allegation that the RBA Certificate obtained by appellant is based on misrepresentation, fraud, concealment of material facts and impersonation.
While the petition was pending for service of notice at pre admission stage, an anonymous complaint was filed against the appellant with the
Chief Secretary of J&K State. In this complaint Deputy Commissioner Baramulla was asked to enquire and file report, by Divisional
Commissioner Kashmir. The Deputy Commissioner Baramulla, initiated enquiry. However, the Appellant without loosing any time, filed SWP No.
973/2000 for quashment of this communication issued by Divisional Commissioner to Deputy Commissioner Baramulla, qua enquiry into the case
of RBA Certificate of the Appellant and for restraining the respondents/State and its officials from making any enquiry in the matter pending
disposal of the above writ petition. While admitting writ petition of the Appellant, the two writ petitions were directed to be listed together
alongwith the connected CMPs including CMP 2702-A/2000, where an initial provisional direction of stay, qua enquiry of Appellant's RBA
certificate initiated by the respondents was stayed. Both the writ petitions alongwith the CMPs came on board. The Writ Court passed an order on
agreement of Ld. Counsel for the parties entrusting the enquiry to Registrar Vigilance (Judicial) and placing on record directions for Registrar
Vigilance in respect of enquiry to be concluded within one month and report to be tiled before the court CMP 2702/2000 was also disposal of in
terms of this direction. This order under challenge in this appeal (LP) before us.
We heard the Ld. counsel, and perused the record. On consideration, we find that the impugned order is a consent order. Counsel has put forth
no cause for enquiry and has agreed for assigning the fact finding enquiry to the Registrar Vigilance. On the promise, court passed following order :
The Inquiry shall be completed and report placed before the Court within one month which period shall begin from 18th of August 2003. The
Registrar Vigilance shall associate both the petitioners if and when necessary. The Divisional Commissioner Kashmir shall cause appearance of
Tehsildars Sonawari and Pattan before the Registrar Vigilance alongwith the inquiry file and other relevant record pertaining to the subject matter
of the writ petitions on 18th of August 2003 who shall have to remain in attendance as may be directed by the Registrar Vigilance. Any lapse shall
be at their own peril. Any officer of the State if summoned by the Registrar Vigilance in connection with the inquiry shall have to appear immaterial,
he may not be a party to the writ petition. Record of these writ petitions shall be delivered to the Registrar Vigilance forthwith. Record of any other
case if summoned by the Registrar Vigilance shall be made available to him without reference to the bench. Report shall be produced by the
Registrar Vigilance in a sealed cover.
While placing on record the above direction(s) Ld. Single Judge further observed:-
....... It is apposite to mention here that the petitioners in both the writ petitions are members of the Judicial Service and the controversy raised
needs to be settled so that these two officers are in a position to function efficiently and effectively and for finding out the truth, an inquiry has
become imperative. Mr. Qayoom, learned counsel for Mr. Allai was pointedly asked to explain the cause against the inquiry, if any. Responding to
the query in fairness he urged none. As a matter of fact learned counsel appearing on either side have agreed for assigning the fact finding process
to the Registrar Vigilance.
The ground urged in support of the Appeal is that the Appellant's counsel has not agreed to the assigning of the fact finding process to the Registrar
Judicial. Instead the counsel, though did not show any cause against enquiry, agreed holding of enquiry under SRO 126 of 1994. The submission
of the counsel which runs counter to the statement appearing in the judgment of the court cannot be urged in Appeal. This is so as this statement of
facts and happenings and concession made transpiring at the hearing appearing in the judgment and order of the court record, are not open to
challenge in appellate proceedings and are conclusive of the facts and events so stated. Only way to correct the record, if the party thinks that the
facts and happenings in court are not correctly reflected in the order is to move and call the attention of the very Judge who made record.
Otherwise the matter ends there and court record is unquestionable. In this regard, it is apt to notice the observations of Supreme Court in Central
Bank of India v. Vrajlal Kapurchand Gandhi and Others, 2003 AIR SCW 3485 as under:-
The only course open to a party taking the stand that order does not reflect actual position is to move to High Court in line with what has been
said in State of Maharashtra Vs. Ramdas Shrinivas Nayak and Another, . In recent decisions i.e. Bhavnagar University v. Palitana Sugar Mill Pvt.
Ltd. AIR 2002 SCW 4939 and Room Kumar v. Mohan Thedani (2003) (3) Sca 611 the view in the said case was reiterated. Statements of fact
as to what transpired at the hearing recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such
statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent
upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record. That is
the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. It is not open to a party to contend
before this Court to the contrary. This court cannot launch into an enquiry as to what transpired in the High Court. It is simply not done. Public
Policy and judicial decorum do not permit it. Matters of judicial record in that sense are unquestionable. However, the court can pass appropriate
orders if a party moves it contending that the order has not correctly reflected happenings in Court.
We do notice that when the matter was required to be enquired by Deputy Commissioner, Baramulla on communication received from
Divisional Commissioner and Chief Secretary, the Appellate rushed to the court to pray for stoppage of such enquiry by filing SWP No. 973/2000
to seek stay of writ proceedings in SWP 1755/2000 filed by Mr. Javaid Ahmad questioning the genuineness of RBA Certificate of the Appellant
on the strength of which certificate Appellant got the benefit of selection/appointment to Judicial Service in RBA category, on the specious but
fallacious plea of putting on hold parallel enquiry. Now when court ordered the enquiry on agreement of the parties by Registrar Vigilance
(Judicial), the Appellant has come in Appeal to pray that such enquiry be held under SRO 126 of 94 and not by the Registrar Vigilance (Judl.). If
Appellant is not objecting to the enquiry, which he should not, in order to reach the truth and determine the factual premise of the RBA category
status and certificate of the appellant, he should least fear for such fact finding enquiry by Registrar Vigilance (Judl.). It is necessary to determine
factual premise and truthfulness of the RBA category certificate and relatable status of the appellant and the benefit derived therefrom by him in
order to re-enforce the confidence in Judicial system and maintain purity of stream of justice. SRO 126 of 94 is not be all and end all of finding
truth or otherwise of grave allegation/ charge of fraud, misrepresentation, concealment and suppression of facts in obtaining the RBA Certificate by
the Appellant. We see nothing wrong in asking the Registrar Vigilance (Judl) to hold enquiry and file report in the matter as ordered by Writ Court.
We also notice that the Appellant has opportunity to associate with the enquiry, depending on the necessity and it cannot be inferred from the
impugned order that Appellant is denied opportunity to be associated with the enquiry, no matter the enquiry is a fact finding process.
We find no merit in this Appeal. Dismissed.